Fair Work Ombudsman v Bundaberg Refrigerated Transport Pty Ltd

[2018] FCCA 2276

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v BUNDABERG REFRIGERATED TRANSPORT PTY LTD [2018] FCCA 2276

Catchwords:

INDUSTRIAL LAW– Awards – breach of award – contravention of FW Act – breach admitted –pecuniary penalty –penalty to be paid to the Commonwealth.

Legislation:

Fair Work Act 2009 (Cth), ss.50, 125(1), 557, 557A

Cases cited:

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Applicant: FAIR WORK OMBUDSMAN

Respondent: BUNDABERG REFRIGERATED TRANSPORT PTY LTD (ACN 113 427 991)

File Number: BRG 1224 of 2017

Judgment of: Judge Vasta

Hearing date: 7 August 2018

Date of Last Submission: 7 August 2018

Delivered at: Brisbane

Delivered on: 7 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Bulut

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the Respondent: Mr Foley

Solicitors for the Respondent: Cranston Mceachern Lawyers & Attorneys

ORDERS

THE COURT DECLARES THAT:

1. The Respondent contravened the following civil remedy provisions:

   (a)section 50 of the Fair Work Act 2009 (Cth) (FW Act) by virtue of a contravention of clause 23.1 of the Bundaberg Refrigerated Transport Pty Ltd Single Enterprise Agreement 2011 (Agreement) by failing to pay to Ms Samantha Healy the casual loading;

   (b)section 50 of the FW Act by virtue of a contravention of paragraph 9 of the undertakings to the Agreement dated 1 June 2011 (Undertakings) by failing to pay Ms Healy weekend penalty rates;

   (c)section 50 of the FW Act by virtue of a contravention of clause 36.3 of the Agreement by failing to pay Ms Healy public holiday rates;

   (d)section 50 of the FW Act by virtue of a contravention of clause 27.2 of the Agreement by failing to pay Ms Healy overtime rates;

   (e)section 50 of the FW Act by virtue of a contravention of clauses 33.1 and 33.8 of the Agreement by failing to pay Ms Healy amounts owing for annual leave taken on 15 May 2015;

   (f)section 50 of the FW Act by virtue of a contravention of clause 8.1 of the Agreement by failing to provide written terms of employment to Ms Healy on her engagement; and

   (g)section 44(1) of the FW Act by virtue of a contravention of section 125(1) of the FW Act by failing to provide a Fair Work Information Statement to Ms Healy either before, or as soon as practicable after, the commencement of her employment.

2. By reason of the Respondent’s contraventions of section 50 of the FW Act, Ms Healy suffered a loss of wages in the amount of $11,451.29.

THE COURT ORDERS THAT:

1. Pursuant to section 546(1) of the FW Act, the Respondent pay pecuniary penalties in the amount of $80,000 in respect of the contraventions set out at paragraph 1 above.

2. Pursuant to section 546(3)(a) of the FW Act, the pecuniary penalties ordered to be paid by the Respondent are to be paid to the Commonwealth within 180 days.

3. Pursuant to section 545(1) of the FW Act, the Respondent will, within 30 days of the date of this order, display a notice at the Respondent’s business premises that can be easily viewed by all employees (Workplace Notice) on the following terms:

   (a)(the Workplace Notice must contain:

   (i)information on the application of the Agreement to employees of the Respondent;

   (ii)information on the minimum rates of pay, casual loading and penalty rates under the Agreement;

   (iii)information on how an employee can access the Agreement (including the location of hard copies of the Agreement in accordance with paragraph 6 below); and

   (iv)information on how to contact the Fair Work Ombudsman;

   (b)the Workplace Notice must be in a form approved by the Applicant at least seven days prior to the Respondent displaying the Workplace Notice;

   (c)the Respondent will provide proof of the display of the Workplace Notice to the Applicant within 14 days of the Workplace Notice being approved by the Applicant; and

   (d)the Workplace Notice must be displayed continuously for a period of one year.

4. Pursuant to section 545(1) of the FW Act, the Respondent will, within 30 days of the date of this order:

   (a)make available at least five (5) hard copies of the Agreement and Undertakings, or any successive enterprise agreements, modern awards, or workplace determinations applicable to the employment of the Respondent’s employees; and

   (b)be placed in an area accessible to all employees of the Respondent.

5. The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.

6. That the Court grants to the Respondent, BUNDABERG REFRIGERATED TRANSPORT PTY LTD (ACN 113 427 991), a costs certificate pursuant to s.10 (3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to organise payment under that Act to the company in respect of the costs incurred by them in relation to the Court being unable to deal with the final hearing listed before it on 3 August 2018.

7. That Order 8 be certified for counsel.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1224 of 2017

FAIR WORK OMBUDSMAN

Applicant

And

BUNDABERG REFRIGERATED TRANSPORT PTY LTD (ACN 113 427 991)

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 11 December 2017, the Fair Work Ombudsman filed an application in this Court seeking that the Court make declarations against the Respondent, Bundaberg Refrigerated Transport Proprietary Limited, for breaches of the Fair Work Act 2009 (Cth) (“the FW Act”) and that the Court also impose pecuniary penalties.

2. The background to this matter involves a woman by the name of Samantha Healy.  Ms Healy began work for the Respondent company on 20 October 2014.  She was employed as a casual employee.  She was paid a flat hourly rate of $23 per hour.  That casual employment ceased on 1 March 2015. 

3. From 2 March 2015 to 12 July 2015, Ms Healy was employed on a full‑time basis, doing the same duties that she had been doing.  After that date, Ms Healy was given a different employment arrangement which was, in effect, a four‑day‑on and four‑day‑off arrangement.  That employment ceased on 29 August 2016. 

4. Ms Healy made inquiries of the Fair Work Ombudsman, who then conducted an investigation of the employment that Ms Healy undertook from 20 October 2014 to 12 July 2015.  That period was 13 months.  The end of that period, that the Fair Work Ombudsman investigated, was some 13 months prior to the cessation of her employment with the Respondent company. 

5. What the Fair Work Ombudsman discovered was that the employment of Ms Healy was governed by an enterprise agreement. That enterprise agreement was approved by then Fair Work Commissioner Asbury on 3 June 2011 in Brisbane. It noted that the agreement had been signed by both the director, Mr MacDonald, for the company and for representatives of the employees. It noted that undertakings were provided by Mr MacDonald and those undertakings were attached to the agreement. Because the Commissioner was satisfied that the requirements of the FW Act had been met, he approved the enterprise agreement.

6. The nominal expiry date of the agreement was 2 June 2015, though, of course, if there is no other agreement that supersedes this one, the agreement that had been agreed simply continues in perpetuity.  In that agreement, there were clauses that related to the minimum rates of pay, salary arrangements, casual employees, hours of work, overtime, weekend work, annual leave, public holidays, personal carers leave, compassionate leave, long service leave and so on. 

7. What the Fair Work Ombudsman discovered, in the investigation, was that pursuant to cl.23 of the agreement, the company was required to pay Ms Healy a casual loading of $5.22 an hour.  Given that her minimum hourly rate was $20.87 and the casual loading of $5.22 would bring the total to $26.09 per hour, because she was being paid $23 an hour, she was being under paid that $3.09. 

8. During the assessment period, she worked 744.32 ordinary hours.  The company was required to pay her an extra $3,885.34 but had only paid her $1,698.11, that being the difference between the $20.87 and the $23 that she was on.  Therefore, she was underpaid a total of $2,187.23.  That is the first contravention.

9. The second contravention was a failure to pay minimum weekend penalty rates.  Pursuant to the undertakings that were annexed to the agreement, paragraph 9 showed that the Respondent was required to pay Ms Healy these hourly rates:  for ordinary hours worked between midnight Friday and midnight Saturday, for the first three hours, $31.31, and for all hours thereafter, $41.74; and for ordinary hours worked between midnight Saturday and midnight Sunday, $41.74. 

10. During the assessment period, Ms Healy worked hours on a weekend and worked 27 hours on a Saturday, that being the first three hours, and worked 55.45 hours after three hours on a Saturday and worked 102.04 hours on a Sunday.  She was entitled to be paid moneys, and she was underpaid the following:  $99.72 for the first three hours on a Saturday, $524.72 for the remaining hours worked on a Saturday and $899.95 for hours worked on a Sunday.  As I say, that is the second contravention.

11. The third contravention was a failure to pay minimum public holiday penalty rates.  Pursuant to cl.36.3 of the agreement, the company was required to pay Ms Healy an hourly rate of $52.18 for all hours worked on public holidays.  She worked 10.52 hours on Australia Day 2015, 12.48 hours on the Bundaberg Show holiday 2015 and 11.32 hours on the Queen’s Birthday public holiday.  She was there underpaid a total of $573.87 for those public holiday days that she worked.

12. The fourth and probably the most serious of the contraventions was a failure to pay the minimum overtime rate.  Clause 27.2 of the agreement required the company to pay Ms Healy the following rates for hours that were worked outside of ordinary hours:  between Monday and Saturday, for the first two hours, $31.31, and for all hours thereafter, $41.74;  and on Sunday, $41.74. 

13. During the time that Ms Healy was working, for her first two hours overtime, she was entitled to be paid $8,077.99 but was only paid $6,563.37.  For her overtime after the first two hours, she was entitled to be paid $10,729.93 and was only paid $6,605.38, and for her overtime on Sunday, she was entitled to be paid $2,169.10 and was only paid $680.28.  Those underpayments were, respectively, $1,514.62, $4,124.55 and $1,488.82.

14. Once Ms Healy then became a full‑time employee, she was entitled to annual leave.  On 15 May 2015, Ms Healy took one day of annual leave, and the Respondent company was, pursuant to cl.33.1 and 33.8 of the agreement, required to pay Ms Healy $158.61 and paid her $120.80, therefore underpaying her $37.81. 

15. Those were the five contraventions because of underpayments to Ms Healy pursuant to the enterprise agreement.  Those contraventions resulted in an underpayment to Ms Healy of a total of $11,451.29. 

16. Pursuant to cl.8.1 of the agreement, the company was required to inform Ms Healy in writing of her employment status, her classification and pay rate. When it was that she was engaged by the company, Ms Healy was not informed in writing of her employment status, classification or pay rate and was not even informed as to the existence of the enterprise agreement. By reason of that failure, the company contravened s.50 of the FW Act by virtue of a contravention of cl.8.1 of the agreement.

17. The last contravention relates to a breach of s.125(1) of the FW Act. Under that section, the Respondent company was obliged to give Ms Healy a Fair Work Information Statement before or, as soon as practicable, after she commenced employment with the respondent company. That statement was not given to her at any time before or during her employment. That is the final contravention.

18. The Respondent has not opposed orders for this Court to make declarations that the Respondent contravened those civil remedy provisions that I have just enunciated, and I do so. 

19. The question then becomes one of what civil penalty ought to be imposed because of this matter.  Before I get on to that, there have been a number of submissions put to me as to what it is that I ought establish as being the basis upon which I impose the penalty.

20. The matters that I have just gone through, I have taken directly from the agreed statement of facts.  Those are the factual bases upon which I am able to make the declarations that are sought.  They are also the factual bases that underpins the need to impose pecuniary penalties. 

21. As is usual in proceedings such as this, the Fair Work Ombudsman filed two affidavits.  They were the affidavits of the Fair Work Inspector, Ms King, and an affidavit of Ms Healy.  The Respondent company filed an affidavit of Mr MacDonald, the director of the company, and from Mr Spottiswood, who has come into the company or has been employed by the company as an outside consultant to ensure that the arrangements of the company are compliant with their obligations under the legislation.

22. It was submitted to me that any evidence that the Court would use in assessing the appropriate pecuniary penalty that was not contained in the agreed statement of facts or pleaded in the statement of claim filed on 11 December 2017 ought be disregarded.  That spoke to a number of matters alleged by the Fair Work Ombudsman that went to issues such as the nature and extent of the loss or damage sustained as a result of the breaches;

    a)whether there had been similar previous conduct by the Respondent;

    b)the size of the business enterprise involved;

    c)whether or not the breaches were deliberate;

    d)whether the party committing the breach had exhibited contrition, taken corrective action or cooperated with enforcement authorities.

23. There was certainly some superficial attraction to such a submission.  This is because if one were looking at similar proceedings in a criminal court, the prosecution would have had to have pleaded in the indictment exactly what had occurred, and there would have to have been some provision to take those matters into account. 

24. The other submission made to me is that whilst the Fair Work Ombudsman had talked about the serious nature of what had occurred, the Fair Work Ombudsman could have elected to proceed pursuant to s.557A, which would have been a plea that the contravention was a serious contravention and, in doing so, would attract a far bigger penalty than what is currently allowed as the penalties. Because the Fair Work Ombudsman had not so pleaded, then the submission was that I was constrained not to look at this matter in such a way.

25. However, it was pointed out that s.557A has only been enacted recently, having been proclaimed in September 2017. As such, because these contraventions relate to contraventions that occurred in October 2014 to July 2015, I could not have acceded to any request by the Fair Work Ombudsman to deal with the matter under s.557A even if it had been pleaded.

26. This is exactly the same reason why, as I get to a little later, the Fair Work Ombudsman says that the maximum penalty that I can impose for any particular breach is $51,000.00 because that is working upon a penalty unit being $170. A penalty unit was $170 until July 2015, when it rose to $180. I cannot now impose a penalty for these offences using the $180 value of a penalty unit because that was not the value of the penalty unit at that time, and that has been recognised by the Fair Work Ombudsman, and that is why I cannot look at s.557A as having been apposite to this matter either.

27. But one does have to get back to the principles. In this case, what the statement of claim is brought to Court for is this purpose, and that is that it is the Fair Work Ombudsman’s reliance upon the proof of a number of facts so as to prove liability for the contraventions of the FW Act. In other words, it sets out what the contraventions are, identifies them and then goes to, in effect, allege who is responsible for those contraventions.

28. The statement of agreed facts does nothing more than put the factual framework to the Court so as the Court can understand what the contraventions are, how it is that they arose and how the respondents are liable for those contraventions.  Once that has occurred and the matter no longer has a liability aspect to it, the Court can then proceed to a penalty hearing.  At the penalty hearing, evidence is allowed to be adduced that goes to matters of aggravation and of mitigation.  Those are needed so that the Court can properly put the offending into its proper context. 

29. I cannot agree with the submission that those matters ought have been “pleaded”.  If they were the subject of pleadings, that is, matters such as the nature and extent of loss or damage, similar breaches, whether the breaches were deliberate, etcetera, then the Court would have to undertake a liability hearing to satisfy all of the matters that are alleged in the statement of claim. 

30. It would be useless conducting a penalty hearing because the matters that were to be discussed at a penalty hearing would be, in effect, still matters of liability between the parties because they became part of the statement of claim.  It is also true that if that occurred, the Court would have to ignore any evidence that was filed by either the Applicant or the Respondent if such evidence strayed outside of the terms of the agreed statement of facts.  That cannot be right.

31. It was then put to the Court that the Court could accept evidence if it was evidence of mitigation but not accept matters if it were evidence of aggravation.  Whilst such a submission would have merit if this were a criminal proceeding and this proceeding was akin to a criminal sentencing, it does not have that flavour about it.  Evidence is either relevant or it is not relevant.  It matters not whether the evidence could be categorised as mitigating or aggravating.  It is merely evidence, and it is a matter for the Court to decide what weight is given and how it is categorised.

32. Therefore, I have decided that it is proper for me to have regard to the affidavits of all four deponents whose affidavits have been filed in this proceeding.  The matter of the weight to be given to what is in those affidavits and even, to some extent, the relevance of what has been filed are matters for the Court, and for the Court only, to decide.

33. In this case, in looking at what is the proper penalty, I have first to decide how it is that these matters ought be grouped.  It has been submitted to me that because these matters were all a breach of the one enterprise agreement - except for the failure to give the Fair Work Information Statement - that those matters could all be grouped into one grouping of offending and therefore only attract the one penalty. 

34. It was submitted that if that did not occur, then the Respondent is going to be punished some five times over for what is in effect the one course of action; and that course of action was the company totally ignoring the enterprise agreement.

35. With the greatest of respect to that submission, I cannot accept it.  I have had regard to what has been said in many authorities on the point, but most recently in the case of Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301. In that case, Bromwich J, in an extremely thorough judgment, goes through the rationale behind the identification and grouping of contraventions. I do not propose to reiterate what His Honour has said, but paragraph 39 is a succinct statement of the law in this area. His Honour has properly delineated what is needed.

36. In this case, there are distinct groupings, and that is that there is a number of offences where the casual loading provision was contravened; a number of times at the weekend penalty rate provision was contravened; a number of times where the public holiday provision was contravened; many times where the overtime provisions were contravened; and, one occasion where the annual leave provision was contravened. 

1. Realistically, it could be said that any time that Ms Healy worked on a weekend or a public holiday or worked overtime, in fact, any time she worked at all where she was not paid casual loading would be a separate and distinct contravention of the FW Act. But with a common sense approach, s.557 enables the Court to group all of the casual loading offences as one contravention, all of the weekend penalty rates contraventions as one contravention, all of the public holiday contraventions as one contravention, all of the overtime contraventions as one contravention, and of course the annual leave contravention is itself one contravention. It is not within the scope of s.557 for those contraventions to be grouped in any further way.

2. The contravening of cl.8 of the enterprise agreement, in that there was a failure to give Ms Healy the written terms of employment, is itself its own separate and distinct contravention and cannot be grouped with any other, and the contravention of the FW Act that mandates an employer to give a Fair Work Statement is its own contravention.

3. That means that there are seven distinct contraventions.  Each of those contraventions carries with it, because the Respondent company is a corporate entity a penalty of 300 penalty units, which, using the $170 penalty unit value, gives a maximum penalty of $51,000.  Therefore, the theoretical maximum penalty that the Court can impose for these contraventions regarding Ms Healy is $357,000.

4. The Court, then, should impose penalties in respect of each contravention.  I have taken into account all of the authorities that talk about the factors that a Court must look at when deciding the proper amount of quantum of a pecuniary penalty. 

5. In this case, I take note of these factors.  Firstly, that the company contravened and underpaid Ms Healy over a nine month period.  Once Ms Healy stopped in that form of employment and went into a new form of employment within the same company, the underpayments stopped.  In effect that meant that there were no contraventions for a period of 13 months after having had a number of contraventions over the preceding nine months.

6. I take into account that the circumstances were that Ms Healy was certainly not made aware of the instrument under which she was being paid and what her entitlements were. 

7. I take into account that she was, whilst not a vulnerable employee in the way in which I have previously talked about persons being vulnerable employees, somewhat of an employee who needed the money and was quick to agree to requests by the employer to do the extra hours, etcetera.

8. I take into the account the nature and extent of what had occurred.  If Ms Healy was to be paid $23 an hour even as a casual for a 38 hour week, she would have been paid over the nine month period approximately $34,086, that is about $874 a week.  Over that nine month period, she was paid $34,086, but was underpaid $11,451.29; that $11,000 is about a third of the $34,000 that she was paid.  In effect, it means a reduction of pay of 25 per cent of what it is that she should have been paid. 

9. Whilst it has been said to me that $11,000 is a small sum in the great scheme of things, and that the maximum amount for the Court to consider as a small claim is $20,000, the $11,000 here represented 25 per cent of what Ms Healy should have been paid.

10. It is very difficult to accept that any worker, let alone a worker who was at the bottom of the totem pole as Ms Healy was, could really afford to be deprived of 25 per cent of their wages straight up.  It also put the company into a position where it was able to be far more competitive with any other company in that it was underpaying an employee by 25 per cent. 

11. If other companies also could cut their wages by 25 per cent, they would be far more competitive but unfairly so.  So it is not in any way a trivial or minor series of contraventions, notwithstanding that one may think that $11,450-odd is a small amount of money.

12. I have taken into account that the Fair Work Ombudsman had previously spoken to the Respondent company about their obligations under their agreement.  But in my view, more importantly is that this enterprise agreement is the company's own document.  It is what the company had contracted with its employees to do.  It delineated the compact that the company had with its employees.  Having set up its own rules as to how it would deal with its employees, it behoved the company to live up to its own agreement.

13. Whilst many companies and many employers have the weight of the FW Act and the weight of numerous awards thrust upon them where they have had no say in the terms of what it is that they must now comply with, this is not the case for the Respondent company. Therefore, the underpayments to Ms Healy, knowing that such underpayments were in breach of its own agreement, is very serious in my view.

14. It does show, in effect, an attitude towards its own agreement that is quite different to an attitude that may be shown by employers who have difficulty navigating the awards and the provisions of the National Employment Standards.  One can sometimes understand the frustrations and negative attitudes in those circumstances. That cannot be said of this company, and so any breach of its own agreement must be seen in a very serious light.

15. I do take into account that the business is a small to medium enterprise, that it does have about 60 employees, that they are employed in diverse areas, and that the company has a turnover of around 14 to fourteen and a half million dollars a year. 

16. I do take into account that the company had suffered as a result of the natural disasters that had hit Bundaberg, and is still, as it were, making sure that it is able to get back on its feet. 

17. However, I am still of the view that there is no excuse for a failure to comply with one's own document, and in that respect, the breaches were deliberate.

18. It has been said to me that the company, in effect, got its act together afterwards and put Ms Healy into a different employment arrangement, and therefore the contraventions did not reoccur.  However, there was no acknowledgment by them ,at that time or at any time, during Ms Healy's employment that they had seriously underpaid her, and no attempt in any way, shape or form to rectify that underpayment.

19. I take into account that Mr MacDonald was involved in the breaches.  He was the one who had the overall supervision of the company.  He was the one who interviewed Ms Healy and gave her the position and should have ensured that the agreement - his own agreement, the one that he signed, was complied with, and he should have ensured that the Fair Work Information Statement had been given to her.

20. I accept that there has been cooperation with the authorities.  The application here had been filed on 11 December.  Within three weeks, the Respondent company had paid the amount of the underpayments back to Ms Healy, and less than two months after that repayment, had entered into and filed with the Fair Work Ombudsman an agreed statement of facts; so there had been cooperation.

21. As far as the contrition is concerned, it is a little worrying that it did take until the institution of these proceedings by the Fair Work Ombudsman for that to occur, though I do note that there were other proceedings taken by Ms Healy in other jurisdictions relating to the termination of her employment, and so I am not going to say that there had not been some contrition, even though it does seem to me as though Mr MacDonald had chosen his words very carefully in the manner in which he has apologised for the way in which the employment arrangement ended.  There has still been no apology for, to use the vernacular, ripping off an employee over that nine month period.

22. I have taken into account all of the other matters.  Those matters that I have really looked are, in my view, the main matters for me to look at in assessing what is the appropriate penalty.

23. It has been put to me by Mr Foley that the appropriate penalty should be less than the amount of the contravention.  I do not accept that as a principle of law.  The amount of the contravention is really in many ways only a factor in looking at the seriousness of the contravention.  The quality of the contravention is not to be judged solely upon the quantum of loss that it has engendered.

24. As has been said by both counsel here, the purpose of imposing a civil penalty is deterrence. That much has been made very clear by the High Court. Deterrence will only occur if the penalty is such that it not only tells this Respondent that such conduct is totally against what our society stands for, but allows others who are in the same position as the Respondent company to think twice before failing to honour their obligations under the FW Act.

25. Going through the penalties as I see them, the failure to pay casual loading, I am of the view that a penalty of $20,000 ought be imposed. 

26. For the failure to pay weekend penalty rates, I am of the view that a penalty of $20,000 ought be imposed. 

27. For the failure to pay public holiday rates, I am of the view that a penalty of $10,000 ought be imposed. 

28. For the failure to pay overtime, I am of the view that a penalty of $30,000 ought be imposed. 

29. For the failure to pay the annual leave entitlement, I accede to the submission of the Fair Work Ombudsman that no penalty be given. 

30. For the failure to provide written terms of employment on engagement, I am of the view that a penalty of $15,000 ought be imposed. 

31. And for the failure to provide a Fair Work Information Statement, I am of the view that a penalty of $5000 ought be imposed. 

32. That totals $100,000.

33. The Fair Work Ombudsman has asked me to impose a discount of 20 per cent.  I was very reluctant to impose such a discount.  I would have thought that it was appropriate for a discount of no more than 10 per cent.  But given that there has been a fairly strident plea for me to do so from the Fair Work Ombudsman, I will do so. 

34. That means that the penalty will be reduced by $20,000 to $80,000.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018